Whistle-blowers: be careful what you ask for

By Bureaucratus

Feb 01, 1998

Even whistle-blowers who have proved they have been the victims of discrimination do not always get all the compensation they want from the government. A decision in October by the Federal Circuit Court of Appeals limited the amount of money one employee could receive as compensation under the Whistle-Blower Protection Act.

The case involved Nathanael Roman, an Army employee who challenged the service's decision not to promote him to chief of the high-altitude Defense projects branch at the White Sands Missile Range, a GM-14 position. Roman appealed the Army's decision to the Merit Systems Protection Board (MSPB).

Roman claimed he was not promoted because he was a whistle-blower. The board granted portions of Roman's request for corrective action, ruling that the Army's decision not to promote him constituted reprisal for whistle-blowing.

Having succeeded in his attempt to rectify a retaliatory action, Roman decided to push his luck by going for broke. After the board's decision, which should have pleased him greatly, Roman filed an additional motion for attorney's fees, costs and consequential damages.

In adjudicating this case, an administrative judge on the MSPB applied the Whistle-Blower Protection Act to determine how to rule on Roman's motion. At the time of the Army's reprisal action, the pertinent portion of the law stated: "If an employee...is the prevailing party before the Merit Systems Protection Board, and the decision is based on a finding of a prohibited personnel practice, the agency involved shall be liable to the employee...for reasonable attorney's fees and any other reasonable costs incurred."

The act was amended in 1994 to provide that "medical costs incurred, travel expenses and any other reasonable and foreseeable consequential [damages]" could also be recovered. Despite the fact that the Army's reprisal for whistle-blowing occurred nearly four years before the 1994 amendment, the judge applied the 1994 amendment retroactively and awarded as consequential damages Roman's travel expenses that were incurred while preparing his appeal.

The judge found that the appellant had established his entitlement to recover more than $1,300 covering costs for photocopies, certified-mail expenses and delivery charges, deposition-related expenditures, office supplies, long-distance telephone calls and other expenses.

The ruling also said Roman's estimate of travel expenses was excessive and allowed only $87.50 of the $556.75 claimed. In addition, the judge denied Roman's request for fees incurred for attorney assistance with his consequential-damages claim.

Pushing His Luck

Although Roman should have quit while he was ahead (he did, after all, succeed in his quest for a promotion), he apparently wanted a complete vindication of his position and petitioned the full board for a review of the initial decision. That was a mistake.

The board determined that the administrative judge had erred in applying the 1994 amendment of the whistle-blower law retroactively. The board cited a number of cases illustrating that it was inappropriate to apply the provisions of the law retroactively. As a result, it determined that Roman was not entitled to the consequential damages but was allowed to receive the small amount of travel expenses awarded by the administrative judge. When Roman appealed to the court, he received little sympathy. The court went along with the MSPB in every respect.

Roman should have accepted the initial decision, which would have achieved almost everything he wanted, including more than $1,300 that he ultimately did not receive.